Wilson v. City of St. Robert
| Decision Date | 17 June 1986 |
| Docket Number | No. 14018,14018 |
| Parties | Dewey WILSON, d/b/a Mini Bus Service, Plaintiff-Appellant, v. CITY OF ST. ROBERT, Missouri, a Municipal Corporation, Ray Adams, Mayor, Tyce Smith, City Counselor, and Tom Julian, Chief of Police, Defendants-Respondents. |
| Court | Missouri Court of Appeals |
Scott R. Traylor, Raymond A. Morwood, Springfield, for plaintiff-appellant.
Tyce S. Smith, Waynesville, for defendants-respondents.
Plaintiff Dewey Wilson brought this action against the City of St. Robert, a city of the fourth class, and certain of its elected and appointed officers as such, seeking to enjoin the application and enforcement of Ordinance No. 211 of the City of St. Robert against the plaintiff on the general ground that plaintiff was doing business as a common carrier of passengers operating under a certificate of convenience and necessity issued by the Public Service Commission. A temporary injunction--or what we regard as such--was issued. Thereafter a hearing was held, evidence was received, and the trial court dissolved its temporary order. The plaintiff now appeals.
Mo.R.Civ.P. 92 1 carefully distinguishes between a "preliminary injunction" and a "restraining order." As noted, the initial order issued in this case appears to be a temporary injunction. The order dissolving that injunction is therefore final and appealable. Niemann v. Carps, Inc., 541 S.W.2d 712, 714 (Mo.App.1976); Perseverance Common School District No. 90 v. Honey, 367 S.W.2d 243, 246 (Mo.App.1963). The record filed is minimal to the point of being nonexistent, but from the pleadings filed we are able to ascertain that the plaintiff's "mini-buses"--those involved in this case--are 9-passenger station wagons. 2 As the merits of the appeal may be resolved upon the meager record by resort to well-established principles of law, we undertake to dispose of the cause finally upon its merits. Mo.R.Civ.P. 84.14; Dickey Co., Inc. v. Kanan, 486 S.W.2d 33, 36 (Mo.App.1972).
Plaintiff Wilson operated vehicles as passenger carriers between "the gate at Fort Leonard Wood" to the cities of St. Robert and Waynesville, and "back and forth." The vehicles are equipped with "two-way radio systems." On redirect examination plaintiff again testified that the "main purpose" of his business was "to transport people from Fort Leonard Wood to Waynesville and St. Robert, and from Waynesville and St. Robert to Fort Leonard Wood." It is conceded that plaintiff's vehicles sometimes pick up and discharge passengers within the City of St. Robert. They wait in line with regular taxicabs in front of motels and at other regular stopping places.
Plaintiff was operating under a Certificate of Convenience and Necessity issued by the Public Service Commission on March 16, 1984. This certificate grants authority to the plaintiff to operate as a common carrier as follows:
The ordinance which the respondent city seeks and intends to enforce against the plaintiff was enacted January 5, 1981. It is styled "AN ORDINANCE TO REGULATE AND LICENSE THE TAXICAB BUSINESS, TAXICABS AND TAXICAB DRIVERS AND TO IMPOSE A LICENSE TAX THEREON; PROVIDING PENALTIES FOR VIOLATIONS...." The ordinance has several sections which are germane to this appeal. Section 2(B) of the ordinance provides:
" 'Taxicab Business' shall mean the business of offering to the public the service of transportation of passengers on other than fixed routes for a charge or fee."
Section 2(C) of the ordinance provides that:
" 'Taxicab' shall mean a motor vehicle used in a taxicab business."
Section 3 of the ordinance provides:
"No person shall engage in, operate or conduct a Taxicab Business within the City without having a current license therefor as provided by the terms of this Ordinance."
Section 4 of the ordinance further provides that:
"No person shall operate a taxicab within the City without having a current license therefor as provided by the terms of this Ordinance; provided, however, that this Ordinance shall not prohibit a person from driving a taxicab through the City without stopping in the City." (Our emphasis.)
The ordinance also provides an elaborate licensure provision and generally restricts the operation of taxicabs in such manner as to protect the public safety. We do not propose to set it forth at length. We must however, set forth Section 25, which reads:
"The maximum number of passengers to be [carried] by a taxicab shall be the seating capacity of the vehicle as recommended by the manufacturer of said vehicle excluding the driver."
There was evidence that no attempt was made to apply or enforce the ordinance as to the plaintiff's operation until October of 1984. Then, as the city concedes in its brief, the Mayor and Board of Aldermen urged the enforcement of the ordinance against the plaintiff and someone advised the plaintiff of the city's intention. The two parties, without any indication of any spirit of mutual forbearance or cooperation, urge us to declare that the ordinance and the provisions of Chapter 390, RSMo 1978, are in direct conflict. We are also urged to declare the ordinance "void." We decline.
There are several rules of law which control this case. Most of those principles were stated in City of Raytown v. Danforth, 560 S.W.2d 846 (Mo.banc 1977). There, the court held:
"
City of Raytown v. Danforth, 560 S.W.2d at 848. The court went on to say:
"Statutes relating to the same subject must be read together and if possible in harmony, and provisions of one having special application to a particular subject will be deemed a qualification to another statute general in its terms. [Citations omitted.]"
Id. at 848. Moreover, the court suggested that when inconsistencies appear in statutes which are in pari materia, the later statute ordinarily prevails. Id. at 848. Further, there is a general rule of law that a municipality may not deny the reasonable use of its streets to public vehicles which are operated thereon under the authority of a certificate of public convenience and necessity issued by an authorized state commission. Bay Cities Transit Co. v. City of Los Angeles, 16 Cal.2d 772, 108 P.2d 435, 438-39 (1940); Adams v. Burke, 308 Ky. 722, 215 S.W.2d 531 (1948); Chicago Motor Coach Co. v. City of Chicago, 337 Ill. 200, 169 N.E. 22, 66 A.L.R. 834 (1929); Note, 66 A.L.R. 847 (1929).
The appellant plaintiff in his first point contends that the trial court erred in dissolving the temporary injunction because regulation of the operation of plaintiff's vehicles by the PSC necessarily precluded regulation by the City of St. Robert. The respondent city answers that under the provisions of § 94.270, the Mayor and Board of Aldermen of the City of St. Robert were authorized to regulate the operation of taxicabs. Section 94.270, in one form or another, has been the law in this state since 1895. As counsel points out, § 94.270, set out marginally, 3 includes passenger carriers, but it also includes almost every other species of vocation. It is broad, general and inclusive.
Section 390.041.1, on the other hand, vests the PSC with authority "[t]o license, supervise and regulate every motor carrier in this state...." The term "motor carrier" as defined by § 390.020.9 includes both "common carriers" and "contract carriers." 4 The PSC has classified and considers plaintiff's operation as that of a "common carrier." The PSC is vested with exclusive authority to license and regulate all motor carriers other than those specifically excepted by statute. State ex rel. Public Service Commission v. Blair, 347 Mo. 220, 226, 146 S.W.2d 865, 871 (banc 1940). The legislation upon which the quoted provisions of Chapter 390 are based was enacted in 1931. The statute as amended to the 1971 revision includes "common carriers" but by the provisions of § 390.030.1 many species of passenger carriers are exempted from PSC regulation. Section 390.041.1 is nevertheless both more recent and more specific than § 94.270, and must control as an exception to § 94.270 unless the plaintiff's operation is exempt by the terms of § 390.030.
Section 390.030.1(3) in terms exempts taxicabs. However, the provisions of Chapter 390 must be read together, and § 390.020.17 defines the word "taxicab" to mean:
"[A]ny motor vehicle ... having a capacity of not more than five passengers, exclusive of the driver and not operated on a regular route or between fixed termini." (Our emphasis.)
The plaintiff's operation--or at least the part of it with which we are concerned--does not fall within this exemption. Under the Commission's initial grant of authority, plaintiff was authorized to operate...
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...it. Perseverance Common School District No. 90 v. Honey, 367 S.W.2d 243, 246-247 (Mo.App.1963). See also Wilson v. City of St. Robert, 714 S.W.2d 738, 739 (Mo.App.1986); Niemann v. Carps, Inc., 541 S.W.2d 712, 714 (Mo.App.1976); J and P Trust v. Continental Plants Corp., 541 S.W.2d 22, 25 n......